Umar Afzal v. Eric Holder, Jr. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2206
U MAR W AQAS A FZAL,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an
Order of the Board of Immigration Appeals.
No. A76-773-857
A RGUED S EPTEMBER 24, 2008—D ECIDED M ARCH 20, 2009
Before P OSNER, W OOD , and T INDER, Circuit Judges.
T INDER, Circuit Judge. Petitioner Umar Afzal was
ordered removed from the United States on September 25,
2007. At the removal hearing, the Immigration Judge
denied a continuance that Afzal requested to seek rein-
statement of his revoked visa. He now seeks review of
the IJ’s decision to deny the continuance. Because we
lack jurisdiction, the petition is dismissed.
2 No. 08-2206
Umar Afzal, a native and citizen of Pakistan, arrived in
America in April 1999 as a nonimmigrant visitor and
ultimately adjusted his status to that of a nonimmigrant
student. Afzal, however, ceased his studies in Decem-
ber 2002 and was placed in removal proceedings the
following February for failing to maintain his nonim-
migrant status. See 8 U.S.C. § 1227(a)(1)(C)(i).
Just before the institution of removal proceedings, Afzal
married Kathleen Hundley, a United States citizen. In
March 2003, Afzal sought a continuance of his first removal
hearing based on a pending I-130 petition for an
immediate-relative visa filed on his behalf by his wife.
See 8 U.S.C. § 1151(b)(2)(A)(i); 8 C.F.R. § 204.1(a)(1). If
approved, this petition would have allowed Afzal to
legally remain in the country and become eligible to file
an I-485 application to adjust his status to that of a perma-
nent resident. See 8 U.S.C. § 1255(a); 8 C.F.R. § 245.2. The
continuance was granted.
Afzal reappeared before an IJ two months later. His I-130
petition still had not been adjudicated by Immigration
and Naturalization Services (the former agency respon-
sible for such determinations) and he accordingly sought
another continuance, which the IJ granted. At this
hearing, Afzal conceded that he was removable absent
the approval of his I-130 petition.
In September 2003, Afzal appeared again in front of the
IJ and again he informed the IJ that Citizenship and
Immigration Services (USCIS, successor to the INS)
had not adjudicated his petition. However, he reported
that the investigation of his I-130 petition had been com-
No. 08-2206 3
pleted and, anticipating its approval, Afzal submitted his
I-485 application to adjust status. He also sought another
continuance to await the outcome of the I-130 petition.
This continuance was also granted.
The I-130 petition was approved on March 4, 2004, and
Afzal informed the Immigration Court of the approval
when he appeared at his next removal hearing on
March 30, 2004. At the March 30 hearing, the govern-
ment recognized that Afzal was eligible for an adjust-
ment of status and the IJ set a hearing on the merits of the
I-485 application (which he had submitted at the last
hearing) for March 14, 2006, two years later.
The March 2006 hearing on Afzal’s adjustment of status
was rescheduled for September 25, 2007. At that hearing,
Afzal informed the IJ that his wife had died on
September 21, 2004, six months after his I-130 visa was
approved and three years before the hearing on his I-485
application for permanent residency. His wife’s death
automatically revoked his I-130 visa, see 8 C.F.R.
§ 205.1(a)(3)(i)(C), meaning that Afzal had been present
in the country for three years without a valid visa at
the time of the September 2007 hearing. Furthermore,
because Afzal was no longer in the country legally, he
had no foundation from which to pursue his I-485 applica-
tion for adjustment of status. See 8 U.S.C. § 1255(a). When
Afzal reappeared in front of the IJ in September of 2007,
he was in the same position as when the removal pro-
ceedings were first instituted—subject to removal because
he was in the country illegally. But this time Afzal
was without the benefit of a pending petition for an
immediate relative visa.
4 No. 08-2206
Afzal’s only hope at this point was for the reinstatement
of his I-130 visa. An alien’s I-130 visa may be reinstated
after the death of his sponsor if USCIS “determines, as a
matter of discretion exercised for humanitarian reasons
in light of the facts of a particular case, that it is inappro-
priate to revoke the approval of the petition.” 8 C.F.R.
§ 205.1(a)(3)(i)(C)(2). If USCIS acted on his behalf, Afzal
would have been able to proceed with his adjustment
of status, and he therefore sought a continuance to
pursue the reinstatement of his visa. This time, the IJ
denied his request for a continuance and ordered Afzal
removed to Pakistan. The Bureau of Immigration
Appeals affirmed. Afzal petitions this court for review.
Our review of decisions made by United States im-
migration officials is limited. See 8 U.S.C. § 1252(a). Deci-
sions made at the Attorney General’s discretion pursuant
to the Immigration and Nationality Act are not subject to
our review. Id. § 1252(a)(2)(B). An immigration judge’s
decision whether or not to continue removal proceedings
is such an exercise of discretion and we therefore ordi-
narily lack jurisdiction to review it. Ali v. Gonzales, 502
F.3d 659, 663-64 (7th Cir. 2007), cert. denied sub nom. Ali
v. Mukasey, 128 S.Ct. 1870 (2008).
However, we retain jurisdiction to review the denial of a
continuance when such a denial would nullify a peti-
tioner’s statutory opportunity to adjust his status. The
paradigmatic case for review is Subhan v. Ashcroft, 383
F.3d 591 (7th Cir. 2004), in which an alien sought a con-
tinuance to complete the process of procuring certain
labor certificates that would have allowed him to adjust
No. 08-2206 5
his status to become a permanent resident. The IJ refused
to grant him a continuance and did so without offering
an explanation consistent with the statute. This refusal
denied the alien the benefit of federal law without reason
and was therefore an arbitrary decision, not an exercise
of discretion. See Kucana v. Mukasey, 533 F.3d 534, 538-39
(7th Cir. 2008). Such a decision had the effect of nullifying
a federal statute and was thus reviewable. Subhan, 383
F.3d at 595. The question in this case is whether Afzal
suffered a similar arbitrary deprivation. We find that he
did not.
After the untimely death of his wife, Afzal’s status
in this country was dependent on the reinstatement of
his I-130 petition, a decision left to the discretion of
USCIS. 8 C.F.R. § 205.1(a)(3)(i)(c)(2). From the time of his
wife’s death until his removal was ordered, Afzal had
three years to seek this reinstatement. There is no evi-
dence that he had taken any of the necessary steps
toward reinstating his visa, nor even that USCIS was
likely to reinstate it if he had. In other words, Afzal, unlike
the petitioner in Subhan, could not point to any prospect
of success regarding the reinstatement of his visa. Be-
cause Afzal’s reinstatement was dependent solely on
the discretion of USCIS, and there is no evidence that
USCIS was inclined to exercise its discretion in his
favor, the IJ had no basis to believe that Afzal would ever
have a visa that would allow him to adjust his status. Afzal
could point to no likelihood of relief, and the IJ was
entitled to rely on this when denying the continuance.
In such a circumstance, the IJ’s denial of a motion for
continuance is unclouded by any hint of arbitrariness, and
6 No. 08-2206
we therefore lack jurisdiction to review it. 8 U.S.C.
§ 1252(a)(2)(B)(ii); Ali, 502 F.3d at 663-64.
The petition for review is, therefore,
D ISMISSED.
3-20-09